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en-usTechdirt. Stories filed under "ipec"https://ii.techdirt.com/s/t/i/td-88x31.gifhttps://www.techdirt.com/Wed, 5 Jul 2017 10:44:26 PDTState Dept. Enlists Hollywood And Its Friends To Start A Fake Twitter Fight Over Intellectual PropertyMike Masnickhttps://www.techdirt.com/articles/20170705/10241437723/state-dept-enlists-hollywood-friends-to-start-fake-twitter-fight-over-intellectual-property.shtml
https://www.techdirt.com/articles/20170705/10241437723/state-dept-enlists-hollywood-friends-to-start-fake-twitter-fight-over-intellectual-property.shtml
For all the talk of "fake news" going around these days, you'd think that the federal government would avoid creating more of its own on purpose. And you'd think that the MPAA and RIAA would know better than to join in on such a project. However, the following email was sent to some folks at Stanford Law School asking the law school to join in this fake news project promoting intellectual property via a fake Twitter feud:

Good Morning! My name is H------, and I am reaching out to you from the State Department’s Bureau of Economic Affairs. I gave you call a little earlier this morning, but I thought I would follow up with an email as well.

Currently, I am working on a social media project with the Office of Intellectual Property Enforcement. This summer, we want to activate an audience of young professionals- the kind of folks who are interested in foreign policy, but who aren’t aware that intellectual property protection touches every part of their lives. I think the law school students at your institution may be the type of community that we would like to engage. Additionally, we know that your law school is ranked among the top schools in Intellectual Property law, and thus our campaign may not only be fun, but relevant for you all as well.

So a little bit of a recap from the message that I left you this morning. The Bureau of Economic and Business Affairs wants to start a fake Twitter feud. For this feud, we would like to invite you and other similar academic institutions to participate and throw in your own ideas!

The week after the 4th of July, when everyone gets back from vacation but will still feel patriotic and summery, we want to tweet an audacious statement like, “Bet you couldn’t see the Independence Day fireworks without bifocals; first American diplomat Ben Franklin invented them #bestIPmoment @StateDept” Our public diplomacy office is still settling on a hashtag and a specific moment that will be unique to the State Department, but then we invite you to respond with your own #MostAmericanIP, or #BestIPMoment. Perhaps it will an alumni defending intellectual property in the courts or an article that your institution has produced regarding this topic.

Some characters from the IP community here in DC have agreed to participate with their own tweets: US Patent and Trademark Office, the Copyright Alliance, the Motion Picture Association of America, the Copyright Office, and the Recording Industry Association of America. We hope to diversify this crowd with academic institutions, sports affiliations, trade associations, and others!

Please give me a call or email me with any questions, comments, or concerns. I look forward to hearing from you soon!

Sincerely,
H--------
Official
UNCLASSIFIED

So, let's break this down. This is literally the State Department, working with the IP Enforcement Coordinator (normally called the "IP Czar") to team up with the MPAA, RIAA and Copyright Alliance (a front group for the RIAA and MPAA), along with the Patent & Trademark Office and the Copyright Office to create a fake Twitter feud over who likes copyright and patents more.

Everything about this is crazy. First, the State Dept. should not be creating fake news or fake Twitter feuds. Second, even if it were to do so, it seems to have picked one side of the debate, arguing that greater copyright and patent enforcement is obviously a good thing (how far we've come from the time when it was the State Department that fought back against SOPA and told the White House not to support it).

Separate from that, why are the MPAA, the RIAA and the Copyright Alliance agreeing to team up with the US government to create fake stories? That seems... really, really wrong. I get that they are obsessed with always pushing a misleading and one-sided message on copyright law, but creating out and out propaganda with the US government?

Also, even if the geniuses at IPEC -- an office that was set up in 2008 under another anti-piracy copyright law -- falsely believe it's their job to push Hollywood's message out to the world, how could they possibly have thought it was a bright idea to engage in outright propaganda using Twitter... and to try to enlist law school professors and students in these shenanigans?

I've put out a request for comment from the State Department's Bureau of Economic Affairs, and will update this post if I hear back.

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]]>um,-guys?https://www.techdirt.com/comment_rss.php?sid=20170705/10241437723Fri, 16 Oct 2015 11:44:27 PDTOur Response To The White House's Request For Comments On Its Intellectual Property Enforcement StrategyMike Masnickhttps://www.techdirt.com/articles/20151014/19000832535/our-response-to-white-houses-request-comments-intellectual-property-enforcement-strategy.shtml
https://www.techdirt.com/articles/20151014/19000832535/our-response-to-white-houses-request-comments-intellectual-property-enforcement-strategy.shtmlaccepting comments for the administration's next "Joint Strategic Plan on Intellectual Property Enforcement" plan. While I know it's easy to roll your eyes at participating in these things, in years past we sent in comments and were pleasantly surprised to see the resulting plan actually take many of those comments into account, and turn out to be something that was mostly reasonable. We do have some concerns about Marti, given that the comments he's made to date seem to reflect a very... one-sided view of copyright enforcement. However, we're hopeful that he's open to evidence and reason. Below are the comments that we're submitting, much of which was based on the Carrot & Stick research report we released last week. If you'd like to submit your own comments, all the details are here. The deadline is today, October 16th.

I write to you today in response to your request for comments on the administration's next Joint Strategic Plan for Intellectual Property Enforcement. As both a long-time professional content creator myself, who relies on my content to make a living, as well as someone who studies innovation, works with startups and entrepreneurs on a regular basis, I have grave concerns that the focus on enforcement is too narrowly tailored, such that it may have a negative impact on the overall goals of nearly everyone involved. It is convenient to portray debates about enforcement as being one industry's views v. another, but the more you look, that's rarely the case. Instead, the problem is often that policy makers become too focused on the "enforcement" tool, without looking at the actual evidence of the impact.

Last week, the think tank I run, the Copia Institute, released a new report, entitled The Carrot or the Stick, which looked closely at the actual impact of increased enforcement on piracy around the globe. What we found in every country that we looked at was that ratcheting up enforcement efforts never seemed to show the intended effect. While they may have shown a brief decrease in piracy rates, that decrease was always temporary (often no more than a matter of months). However, when new and innovative services were introduced, the impact was much clearer and long-lasting. As an example, piracy rates for all kinds of content in Sweden were quite high, which might not be a surprise, given that the Pirate Bay started in Sweden. However, piracy rates for music dropped rapidly and permanently when another Swedish business was able to offer service: Spotify. Notably, while music piracy rates dropped massively, the same was not true for movies and television.

Sweden then passed its IPRED law, to ratchet up enforcement, with greater criminal penalties. While piracy rates did drop after IPRED went into effect, the impact was short lived and studies showed that piracy rates quickly returned to normal. Yet, well after that, Netflix entered the Swedish market, and, again, piracy rates dropped precipitously for movies and television.

While some have argued that the greater enforcement works hand in hand with such innovation, the evidence we looked at suggested that was not true at all. In most areas we looked, the rapid innovation cycles (indicated by a rapid increase in authorized services) pre-dated the increased enforcement efforts.

In short: greater enforcement did not decrease piracy rates, while innovation did.

Even worse, it appears that by focusing too much on enforcement, it can actively harm or slow down that very necessary innovation. The MPAA's Jack Valenti once famously declared that "the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." That was in the midst of the MPAA's heated legal and legislative battle to stop such home video machines. Yet just four years later, revenue to Hollywood from home video surpassed box office revenue. If Valenti had succeeded, things would have been worse off for the very industry he represented.

Time and time again, we've seen that a focus on enforcement often means trying to kill off necessary innovations. Innovations such as the radio, television, the MP3 player, TiVo and more have been sued in an attempt to "enforce" the law, when all that was really needed was for the industry to figure out ways to incorporate them into their business models. A decade ago Viacom sued YouTube for a billion dollars, claiming that it was a piracy site. Yet, just this week, Viacom's movie studio, Paramount Pictures, announced that it was releasing over 100 of its films for free on YouTube. Things change quickly.

Historically, the pattern is clear, however. When new innovations threaten old business models, the solution is not to reach for the hammer of "enforcement." It's to learn from what's happening, to understand what the public is seeking, and to innovate to provide it in a better way. Time and time again this strategy has worked, and it's important to be careful that if you focus solely on the ability to increase "enforcement" that you actually end up with a worse result: destroying the innovation that helps provide the very tools for creating, distributing, promoting and monetizing new content.

Your role and the focus of this report is on "enforcement," but it needs to be viewed in the wider context of "promoting the progress." Rather than falling for the easy story line of two industries at war with one another, it's time to recognize that the best "enforcement" is often in crafting policies that allow for more innovation, that enable more startups and more competition, rather than just looking at what things can be shut down or sued or seized.

Sincerely,

Michael Masnick
Copia Institute

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]]>be-careful-with-that-hammerhttps://www.techdirt.com/comment_rss.php?sid=20151014/19000832535Tue, 8 Sep 2015 14:01:00 PDTIP Enforcement Czar Wants To Hear From You About Government's IP Enforcement PlanMike Masnickhttps://www.techdirt.com/articles/20150905/00232332169/ip-enforcement-czar-wants-to-hear-you-about-governments-ip-enforcement-plan.shtml
https://www.techdirt.com/articles/20150905/00232332169/ip-enforcement-czar-wants-to-hear-you-about-governments-ip-enforcement-plan.shtmlasking for public input on the upcoming "Joint Strategic Plan on Intellectual Property Enforcement" that it will be releasing next year. The Joint Strategic Plan comes out every three years and is supposed to guide the federal government in how it handles priorities around intellectual property enforcement. Now, I recognize that the cynical among you will already be insisting that there is no value in responding to this, because the government is going to simply repeat the arguments of the legacy industries and its copyright extremists. However, in the past, these open comment periods have actually helped, and the two previous Joint Strategic Plans have not been as bad as expected. In 2010, we sent in our feedback and was pleasantly surprised that at least some of it was reflected in the plan. It recognized the importance of fair use and encouraging innovation. It also admitted that most studies on the impact of intellectual property on the economy were bogus.

Then, the second report, issued in 2013, was even better and presented a much more balanced understanding of intellectual property law, and how over-enforcement and over-expansion could create real harms as well. It also points out that truly the best way to deal with problems around "piracy" is through greater innovation, rather than relying on enforcement. It doubled down on supporting fair use, and noted that it was working with the Copyright Office to release an "index of major fair use decisions" -- something that finally came out just a few months ago and is actually pretty damn good.

In other words, this report need not just be a playground for Hollywood types looking to ratchet things up.

Still: there are concerns. The first two reports were done by the original IPEC, Victoria Espinel, who left the office a few years ago. This latest report will be overseen by the new IPEC, Danny Marti, who has only been in the job a few months. And, unfortunately, in one of his first speeches, he trotted out pretty much all of the ridiculous and debunked copyright extremist tropes about the need for greater protection, exaggerating the economic impact of intellectual property and demanding more "respect" for intellectual property (rather than earning more respect for it).

It's also somewhat concerning that in his blog post asking for public comments, he cites one of the most debunked statistics around, from the US Chamber of Commerce, concerning the "worldwide market for counterfeit and pirated products," which he argues is $1.8 trillion. Having spent years debunking earlier claims of $200 billion, the idea that it's magically shot up to $1.8 trillion is insane. What's incredible is that the "methodology" for the $1.8 trillion is laughable, and it's a shame that Marti would cite it. The Chamber of Commerce just took the already debunked numbers from 2008 (which, in case you are wondering were actually based on a number someone just made up in the 1980s and which has never been checked) and then "projected" out to 2015. Really. And Marti quotes it as if it has some validity.

And he does this despite the fact that actual credible sources like the Government Accountability Office and the OECD have both insisted that there is no evidence that the issue of counterfeiting is anywhere near as big as the earlier problems stated. Furthermore, multiple studies have further shown that counterfeiting is very rarely a true "economic loss" as it's almost never a substitution good, but rather an aspirational purchase. That is, the person buying the fake Rolex isn't taking any money away from Rolex, because they can't afford to buy a real one. In fact, multiple studies have found that those who buy counterfeit products regularly go on to buy the real product later, when they can afford to. In fact, it appears the purchase of a counterfeit often gives them a closer bond with the brand itself. And, in the end, estimates have suggested that actual counterfeiting is probably somewhere around 2 to 3% of the big numbers thrown around by the Chamber of Commerce.

So, you have to wonder, if Marti is tossing around numbers from one of the world's largest lobbying organizations, the US Chamber of Commerce, rather than from well respected and credible sources like the Government Accountability Office and the OECD, just where he's coming from as he puts together this report.

Hopefully, people can submit thoughtful and well-argued comments based on the details set forth in the Federal Register and help point Marti and the IPEC office in the right direction. Such comments are due by October 16th.

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]]>speak-uphttps://www.techdirt.com/comment_rss.php?sid=20150905/00232332169Tue, 5 May 2015 08:19:02 PDTOur New IP Czar Gives His First Speech... And It Is Not Encouraging At AllMike Masnickhttps://www.techdirt.com/articles/20150503/07004830868/our-new-ip-czar-gives-his-first-speech-it-is-not-encouraging-all.shtml
https://www.techdirt.com/articles/20150503/07004830868/our-new-ip-czar-gives-his-first-speech-it-is-not-encouraging-all.shtmlmoderately hopeful that he didn't come out of the usual copyright maximalist/Hollywood/legacy industry camp. Instead, much of his work had been on the trademark front, and thus we'd hoped that maybe his focus would be more limited to issues around counterfeiting (which are also overblown in terms of actual concern -- but which have less of a free speech concern). After months of Congressional stalling, Marti was finally officially given the job a few weeks ago. And one of the first things he did was go give a speech at a "Creativity Conference" put on by the MPAA and Microsoft (yes, really), in which he appeared to repeat a bunch of horribly misleading, to downright wrong, talking points. In short, as a first impression, Marti is a disaster. Take a look:

After kicking off with a weak joke about his job title, he starts right in with the misleading talking points.

Summarizing my job, in the spirit of this conference, I think it's fair to say that the IPEC Office is the Executive branch's "creative conscience."

First of all... what? The role is enforcement, which has nothing whatsoever to do with actual creativity. In the past, with Marti's predecessor, Victoria Espinel, we often wondered why there was an "enforcement coordinator" at all, since the job title itself was so one-sided. If anything, if we were to go by the Constitutional rationale for copyright and patents, the role should be one in which it looks to see how best to "promote the progress of science and the useful arts." And enforcement is often not the best way to do that. In fact, as we've spent years demonstrating, enforcement can often harm the progress of the science and the useful arts. So it's interesting to see Marti suggest that his role is about being a "creative conscience." For a second, I thought that maybe this meant he'd actually consider what was best for creativity -- meaning all creators, not just the few who were lucky enough to be selected by the large legacy gatekeepers. But, no, as you'll quickly learn, by "creative conscience" he actually means "protector of a few legacy gatekeepers who often screw over actual creators."

Part of my job is to make sure that the administration keeps the impact on creativity top of mind when it adopts policies, makes decisions, and takes action.

Again, that's good if we're talking about actual creativity and all creators. But... he's not.

I'm also responsible for helping marshal the federal government's resources to help combat violations of intellectual property. Put simply, my office is dedicated to the protection of the American intellectual property system that helps drive our national economy.

And there we go, right off the tracks. He is focused on protecting the existing system -- even when it is shown to harm creativity, free expression and innovation. That's a problem. Maybe he didn't really mean that? Nope, he means it:

Let there be no mistake and no misunderstanding. Intellectual property is an integral part of the US economy. We're speaking of the spark of genius and the ideas behind transformative inventions, the artistry that goes into books, music and film. The trade secrets that preserve a company's market edge. Or the brands that distinguish our companies and their goods and services.

Already, he's making the cardinal sin of talking about intellectual property that we were just discussing: conflating the "property" piece with the underlying aspect of it. The spark of genius is not intellectual property. The ideas are not intellectual property. The artistry is not intellectual property. The brands are not intellectual property. The specific copyright, patents and trademarks may be property-like entities, but those are not the same thing as the underlying content, inventions or brands. As we noted in our piece about confusing those things, when you do that, your policy suggestions are going to be really, really bad. And you're going to make really silly statements like Marti does next:

Intellectual property helps create marketplaces that help drive economies, domestically and internationally. For example, the "core copyright industries" -- those whose primary purpose is to create, produce, distribute, or exhibit copyrighted materials -- added more than $1 trillion to gross domestic product and created and supported millions of jobs.

That's not true. We've gone through these numbers in the past, and shown how they're simply misleading and no one should be using them to make a serious point. They very broadly define the "core copyright industries" such that any industry that gets copyrights is determined to exist only because of copyright law. And that includes software firms that thrive on giving away services for free and that don't actually rely on their copyrights for anything. Besides, if you want to compare apples to apples, the IIPA who does the study that Marti is relying on, has shown that the "core copyright industry" isn't contributing nearly as much to the economy or economic growth as the internet economy is, and the internet economy is frequently held back by bad copyright laws.

Intellectual property-based industries are among the U.S.'s strongest exporters.

Well, sure, that's true if you argue that any company with a brand is an "intellectual property-based business," but that kind of thinking takes you down the path of arguing that grocery stores are an intellectual property miracle that only exist thanks to trademark law. And that's plainly ridiculous.

Overall, IP industries accounted for over 60% -- Six Zero -- of US exports.

Yes, but no one actually believes any of that is because of intellectual property laws, unless you conflate those laws with the underlying things, like brands.

The recorded music, motion picture, television and video, and software publishing businesses, for example, contributed to sales in foreign markets exceeding $156 billion dollars.

And how much of that is because of copyright law -- and how much of it is because it's content that people find valuable enough to purchase? Marti just ignores the distinction and lumps it all in because of copyright. Also, note, for someone who claims he's focused entirely on being the "creative conscience," his actual focus appears to be almost entirely on the commercial side of the creative ledger.

That is why it's so important to understand and protect IP, to foster legitimate trade, and to open foreign markets to US creative content.

That last one is a "I work for the President and need to give my shout out to the TPP and TTIP agreements" talking point. But, really, what did he say before that shows why it's "so important to understand and protect IP"? Frankly, I don't see anything. He talked a lot about big numbers, but nowhere did he show why strong intellectual property laws made those things possible. And nowhere did he consider that, maybe (just maybe) weaker IP laws may have actually enabled larger markets, or more creativity. That kind of thinking doesn't even enter the equation, which is kind of odd if you're positioning yourself as the "creative conscience."

Does he mention the importance of fair use in enabling creativity? Is he at all concerned about the lack of fair use in these trade agreements that supposedly will "open foreign markets" while stifling free expression?

Without understanding these things, for him to just automatically leap to the claim that we have to "protect" the existing system, it's difficult to take Marti seriously. He appears to be repeating talking points with no understanding at all of the underlying nuances.

The timing of today's event is fitting. Sunday is World Intellectual Property Day -- a global celebration of the role of intellectual property, of innovation, of creativity, in our daily lives.

Is it? Really? No, "World Intellectual Property Day" is a celebration of the legacy gatekeepers that take the copyrights of actual creative people, and push for expanding those laws with no thoughts towards the actual impact on creativity. And the creativity "in our daily lives" is frequently done without the use of intellectual property laws -- and, all too frequently, conflicts with those laws.

This year's theme is "Get Up, Stand Up. For Music" invoking Bob Marley and Peter Tosh's tune, to illustrate how song can serve as a call to action.... Bob Marley's song serves as an endearing, international anthem for human rights. Let us tap into this spirit, this call to action, to speak up for artistic communities, the world over.

Right. Like, remember that time that Bob Marley's family tried to reclaim the copyrights to two of his albums, including "Burnin'" where "Get Up, Stand Up" first was released? And remember how Universal Music fought that and won, so that Universal Music got to keep the copyright, as opposed to the Marley family? Thank goodness Universal still holds the copyright, or perhaps they would have had to pay Marley's family for the right to use that theme for this year's "World Intellectual Property Day," right?

Yes, ladies and gentlemen, Danny Marti is the US's "creative conscience"... for the giant multinational corporations against the actual creative folks out there. And, really, whose brilliant idea was it to use Jamaican music as a call for stronger IP laws -- when anyone even remotely familiar with the history of popular Jamaican music, knows that it involved rampant copying and remixing of others' songs, no concern about copyright at all (until foreign record labels jumped in and started divvying up the pie) and near endless creativity from that ability to remix and try new things. That's not exactly a ringing endorsement for stronger copyright laws.

And, again, if we're speaking up for "artistic communities, the world over," how about those who are being blocked from creating new works due to overbearing copyright laws? How about those who are being sued for having a song that has a similar feel to another song? Do they count?

Let us stand up for art. Let us stand up for the artist. Let us stand up to respect the artist's right to make a living off of his or her artistic labor.

Yes, unless you're Bob Marley's family. Then let us stand up for Universal Music's right to go to court to block the Marley family from that right! Or, unless you're a remix artist creating wonderful new songs by building on the works of the past.

Also, where in the constitution does it say that anyone has a "right to make a living off of his or her artistic labor?" I have many friends who "labor" quite hard in making music, but don't make livings from it. Should I send them to Marti to solve that? Will he "marshal the federal government" to make sure they make a living?

Because this is another nefarious myth. You have no "right" to make a living from your labor. People might just not value it enough to pay for it. Or you might not be offering it in a format that people will pay. What about my friends who were journalists over at GigaOm, which recently went out of business? They were creating many written words, and laboring very hard at it. But the company went out of business. But if we believe they have "a right to make a living" from their creative labor, shouldn't they be guaranteed a living? Everyone knows that's crazy. So why do we repeat the myth when it comes to music? Most musicians -- in fact, nearly every musician -- has never "made a living" off of their music. Only a very few have. And it's not because they had a "right" to make a living.

And let us stand up to forcefully reject those who believe that the theft of one's creative output is somehow acceptable. It is not.

Of course, we're back to the misleading use of "theft." Do we consider what UMG did to Bob Marley's estate "theft"? Someone should ask Marti. Does he consider Pharrell and Robin Thicke writing a song with a similar "feel" to a Marvin Gaye song as "theft"? Does he consider a woman posting a 30-second video of her child dancing to a Prince song "theft"? Does he consider artists like Kutiman as theft? Does he consider artists like Led Zeppelin and Bob Dylan -- many of whose greatest works where near note-for-note replicas of others' songs -- engaged in theft?

Because any honest discussion of creativity and intellectual property laws has to be able to take into account all of these situations, and the word "theft" doesn't really cut it -- which is also why that's not what the law says. You'd think that the guy whose role is to help enforce the law would understand that copying a song isn't "theft." It's worrisome that he does not.

When we speak of the role of creativity in our lives, we're also speaking about human expression, building communities. The sharing of stories -- whether through print, music or film -- brings people together, fosters discussion, builds bridges and helps create common identity.

Of course, if that "discussion" or "common identity" strays too far, such as in creating a derivative work, that may be seen as infringement (or in Marti's world "theft") and thus he will "marshal the forces of the federal government" to bring you down. All in an effort to protect the glorious markets of the creative conscience.

Our digital lives have only helped to accelerate these discussions, bringing people together and bringing their stories closer.

And, because of that, the US government has been actively shutting down websites where those discussions happen and pushing for laws to throw the operators of the websites in jail.

And in order to further that, we must strive to build not only an open internet, but a safe, secure and stable one.

In other words, not really an open internet. But one that is limited and controlled by multinational gatekeepers. Either way... I feel that we're rapidly approaching the administration's favorite buzzword. I know it's coming, I just know it... and...

One way the administration is seeking to do just that is by fostering multistakeholder processes in which all participants in the ecosystem -- government, the private sector, and civil society -- can play a role in encouraging positive internet behavior and marginalizing anti-social and, indeed, criminal behavior.

Multistakeholder! Bingo! What do I win? Oh, someone now arguing that rather than encouraging freedom of expression and an open internet, we should try to look for ways to stamp out "anti-social behavior" online. Hmm. Anti-social behavior? Wouldn't that bar songs like "Get Up, Stand Up" that could be seen as "anti-social" in encouraging the public to stand up for their own rights when they are being taken away from them by their government? Rights like freedom of expression?

Protecting and advancing a community starts with action by its members. We need to stand up for what is good and reject what is unfair.

I think freedom of expression is good. I think shutting down websites that were blogging about music is unfair. I think that supporting programs for site blocking, that take down free speech, is unfair. I think a system that prioritizes the ability of large multinationals to block innovation is "unfair." Yet, these all seem to be things that IPEC supports.

Stakeholder responsibility will create an environment conducive to creativity.

Let me translate this for you: "Search engines should start censoring sites that the MPAA dubs "unfair" because they challenge the MPAA's business model."

It will benefit those who make a living producing creative works.

Unless, like Dan Bull (who makes his living producing creative works), you relied on sites like Megaupload to distribute those works and the US government shut it down.

It will benefit those who enjoy those works.

Unless you no longer have access to them, thanks to US courts censoring them.

Respecting IP not only encourages creativity, it also promotes the technologies for communicating that creativity. This bears repeating. Respecting IP not only encourages creativity, it also promotes the technologies for communicating that creativity.

How? This is a serious question, but I'd like someone to answer it, because history doesn't come even remotely close to supporting that claim as can be seen by Marti's next ridiculous statement:

The desire to tell stories to even wider audiences in even more vivid ways, has a long chain of technological innovation, creating new industries along the way. From printing, to radio, to film and television, and now, of course, the internet economy.

And each and every single one of those was decried initially by the legacy forces -- the gatekeepers who controlled the previous industries. The printing press was in a time before copyright, but obviously shook the very foundations of society by helping to break it out from Church control. The radio resulted in a massive legal fight as the record labels tried to kill it in its early days. The film industry moved to Hollywood to avoid enforcement of the patents of Thomas Edison, and often relied on copyrighting the innovations of others in the industry. When television came along, the film industry also freaked out and tried to hamper it -- especially innovations like the VCR. And, of course, the internet. We've had lawsuits against search engines, video platforms, MP3 players, book indexes and more. If we "respected" IP in the terms of the legacy gatekeepers, we'd have none of those innovations.

Look, I get it: Marti's very job description basically says that he needs to take on the role of propping up the interests of the legacy gatekeepers. But, at the very least, his predecessor, Victoria Espinel, seemed willing to recognize that there was a lot more to what was going on than the one-sided version of history presented by those gatekeepers. Espinel was at least open to the idea that too much IP could create more problems than good things. Marti shows no sign of this recognition, and seems so thoroughly bought into a single world view of intellectual property that he didn't even realize just how ridiculous it was for anyone in the "intellectual property" world to cite Bob Marley as a good example of supporting creators.

So go on, Marti, "Get Up, Stand Up!" but recognize that what you're standing up for, is not for the "creative conscience" or for creators themselves, but those who seek to be gatekeepers on that creativity.

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]]>almost-every-point-is-wronghttps://www.techdirt.com/comment_rss.php?sid=20150503/07004830868Thu, 11 Dec 2014 08:10:00 PSTSenator Whitehouse Is Very Angry About A Made Up Google Search And A Made Up Pirate BayMike Masnickhttps://www.techdirt.com/articles/20141210/13150929384/senator-whitehouse-is-very-angry-about-made-up-google-search-made-up-pirate-bay.shtml
https://www.techdirt.com/articles/20141210/13150929384/senator-whitehouse-is-very-angry-about-made-up-google-search-made-up-pirate-bay.shtmlrefused to change his position. It appears he'd like to push such a solution again. On Wednesday, the Senate held hearings for the nominees for both the head of the US Patent and Trademark Office, Michelle Lee, as well as the new "Intellectual Property Enforcement Coordinator" (IPEC), Dan Marti. Marti is a bit of a wildcard, with most of his legal practice related to intellectual property being focused on trademark, rather than copyright. So it was worth paying attention to what he had to say in response to the questions. However the most bizarre and ridiculous question came from Senator Whitehouse, who proved to be rather confused about how both the internet and copyright law worked. You can see the full video here. Whitehouse begins talking around the one hour, 35 minute mark. He kicks it off by displaying his ignorance. First, he refers to Marti's predecessor, Victoria Espinel, and how he had asked her to do more to stomp out piracy, and then launches into a statement almost entirely devoid of factual statements:

I can remember Ms. Espinel coming here, some time ago to talk about the progress she intended to make in dealing with the criminal activity that steals American intellectual property, particularly entertainment content, and provides it to viewers, and that they were going to work really hard, with other American corporations that were supporting that activity to try to knock it down.

So while we were having this hearing, I picked up my iPad, and I went to Google, and I Googled "pirate movie." And Google gave me "The Pirate Bay" [holds up his iPad] which is an illegal enterprise, operating out of Sweden. And if you go to the page where you would get access to the pirate content, it says "get access now" and underneath it you have the flags of Visa, of Mastercard, of American Express, of Cirrus and of Paypal. And below that it tells you all the devices it works on and shows you the logos of Apple, Android, and so forth.

It looks to me like this criminal activity is still being wrapped around with the apparent support of a wide variety of American corporations. [Incredulous expression]. Explain to me how there's been progress made.

Almost everything Senator Whitehouse said in this statement is either wrong or totally clueless. It does not speak well of him as a Senator to be so misinformed about some rather basic things. First, there are the basics. A search engine is not and should not be illegal. Yet, Senator Whitehouse doesn't seem to understand the different role of a system like The Pirate Bay from a site that actually hosts or uploads infringing content. Second, at the time of the hearing, the Pirate Bay is down, so his claims pretending to show the site are clearly a lie. It's been in the news a lot that the site is gone. You'd think some staffer would have told Senator Whitehouse not to use that example.

Third, a Google search on "pirate movie" does not link to The Pirate Bay at all. Here's the search done on Google:

Note that it actually highlights a 1982 movie, and even points people to Amazon where they can purchase it. Nowhere on the page does it point anyone to The Pirate Bay or any other site from which you can download infringing content. Not even close.

Senator Whitehouse appears to be flat out lying about what happens when you do such a search on Google, and then compounding it by lying about going to The Pirate Bay. On top of that, his description of what he claims he saw on The Pirate Bay appears to be totally false as well. And while some of my critics may find this difficult to believe, I've never used the site (other than occasionally reading some of its blog posts) so I reached out, via Twitter, to multiple people who had used the site regularly to see if his description was accurate. None could ever remember seeing credit card logos or Apple/Android logos. And, why would they, really, since the content found on The Pirate Bay was usually just pure files and available for free. So there would be no need to post credit card logos or even device compatibility, since that would depend more on the kinds of apps you used to view/listen/read the files obtained. Yes, there were tons of ads on the site, people point out, but they tended to be for crappy porn sites and the like.

In other words, almost every detail of what Senator Whitehouse describes is a lie. He may be describing some other site, but he didn't find it with the search he described and it wasn't The Pirate Bay. And even if there were logos from American companies, anyone can set up a website with such logos and it means nothing about whether they're complicit.

And then he demands that something must be done?

Marti barely gets half a robotic sentence out in response, saying that "criminal actors, criminal enterprises have no limits" when Whitehouse cuts him off with some more nonsense:

They actually do! [Holds up iPad again] There are ways in which these companies could go to court and try to knock this stuff down. There are ways in which prosecutors can have discussions with companies about aiding and abetting offenses and about being accessories to offenses. There's a lot that can be done in this area, it seems to me!

Marti points out that he was talking about something entirely different -- that sites will of course put up logos to make themselves try to look legit (though he doesn't go so far as to point out that Senator Whitehouse's suggestion that because a site puts up a logo, that doesn't mean the company whose logo was put up isn't "aiding and abetting" a damn thing).

Even more to the point, Whitehouse's claim that companies can "go to court and try to knock this stuff down" also makes no sense. Under what law? What legal issue is there in the (fake) circumstances that Whitehouse describes? At most, there might be a trademark violation, and does he really think it's worth company's time to go after such fly-by-night sites for trademark violations? And the whole "aiding and abetting" claim is ridiculous. Is Senator Whitehouse honestly claiming that if a site that offers up infringing works notes that the works can work on Apple or Android that Apple or Google are "accessories" to a crime? Isn't a Senator supposed to understand the law?

Whitehouse then turns to Michelle Lee, who used to work at Google, but on patent policy, not copyright, and asks her if Google could stop this. Though, again, he's flat out lying about what Google is supposedly doing. It's a bizarre question. And Lee just says she doesn't know the answer to that question (how could she when it makes no sense). Whitehouse gives a sarcastic "Hmm!" in response, as if he's discovered something -- other than actually revealing his astounding ignorance. He further claims that because Lee was a deputy general counsel at Google (again on patents, not copyright issues) that it shows that Google didn't really care about this issue. Really?

Finally, he appears to attack Marti for not having done anything, despite the fact he's not in the job yet, and then claims that all of this proves that the "voluntary" process that Espinel championed (like the ridiculous "six strikes" agreements between some ISPs and the legacy entertainment companies) is not enough. He seems to clearly be hinting that we need more government action, or more SOPA-type laws, based on an entirely false scenario that either he or his staffers (or some... lobbyists) made up and handed to him. Instead, all it shows is him getting angry in a manner that displays his near total ignorance of the topic at hand.

Is it really too much to ask that the people who make the laws impacting technology not be totally ignorant about both the laws and the technology? Frankly, Senator Whitehouse owes Marti, Lee and basically all internet users an apology.

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]]>something must be donehttps://www.techdirt.com/comment_rss.php?sid=20141210/13150929384Fri, 29 Aug 2014 16:00:59 PDTPresident Obama Finally Gets Around To Nominating A New IP CzarMike Masnickhttps://www.techdirt.com/articles/20140829/06225828360/president-obama-finally-gets-around-to-nominating-new-ip-czar.shtml
https://www.techdirt.com/articles/20140829/06225828360/president-obama-finally-gets-around-to-nominating-new-ip-czar.shtmlnew head of the US Patent and Trademark Office, the other big administration "intellectual property" job has also been vacant for over a year: the "Intellectual Property Enforcement Coordinator" (IPEC) job, frequently referred to as the "IP Czar." That job was previously held by Victoria Espinel, who left a year ago and immediately jumped to a lobbying job with the BSA, the copyright maximalist trade group run by Microsoft.

While I was disappointed to see Espinel jump to such a group, and disagreed with some of things she did as IPEC, on the whole she did a good job while in that role. The job itself is very strange in that it's written into the law (PRO-IP Act of 2008) to be a role that basically pushes for IP maximalism, rather than any sort of balance (or anything involving actually promoting the progress of science and the useful arts). It would be like having a role in the Treasury Department specifically devoted to "how do we protect outdated bank business models." But, on the whole, Espinel actually worked really hard to take opposing viewpoints into account, to bring a variety of people into the discussion (including voices that had previously been ignored by DC). Her more nuanced and inclusive take on things was evident from the big 2013 Joint Strategic Plan that she released right before leaving office. It recognized that the best way to deal with infringement wasn't necessarily by ramping up enforcement (despite her title), but in encouraging greater innovation. And unlike many other similar efforts, it actually recognized the value and importance of fair use.

Given all that, many people had been wondering who would be appointed to take over the job. It's now been announced that Obama is nominating Danny Marti, a long-time DC trademark lawyer. While he's been involved in other types of cases, including CFAA, cybersquatting and copyright cases, it appears that his focus has been on trademark. That's an interesting choice, since trademark issues tend to be less controversial than copyright ones. He also doesn't appear to have much of a policy background at all, which makes it an interesting choice.

While the RIAA and MPAA, along with NBC Universal and the US Chamber of Commerce, all cheered on the nomination, they're kind of expected to do so. And, as the Washington Post notes, they appear to be cheering on the position more than the guy filling the role. The Washington Post also quotes Mitch Stoltz from EFF noting that he hopes Marti's experience in these cases means that he "understands that careless over-enforcement of trademark, copyright, and patent laws can harm our economic progress and our freedom of speech." He still needs to be approved by the Senate, but we're hopeful that if he is, Marti continues to follow in Espinel's footsteps in actually listening to a variety of opinions outside of just those emanating from Hollywood.

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]]>not-a-copyright-guyhttps://www.techdirt.com/comment_rss.php?sid=20140829/06225828360Thu, 20 Jun 2013 12:28:00 PDTLatest White House Intellectual Property Strategic Plan Much More Balanced & ReasonableMike Masnickhttps://www.techdirt.com/articles/20130620/12034123546/latest-white-house-intellectual-property-strategic-plan-much-more-balanced-reasonable.shtml
https://www.techdirt.com/articles/20130620/12034123546/latest-white-house-intellectual-property-strategic-plan-much-more-balanced-reasonable.shtml2013 Joint Strategic Plan for Intellectual Property Enforcement, which she's required to put out under the law that created her position, the ProIP Act. When the last report came out, in 2010, we noted that it wasn't as bad as we'd expected, though it still had some serious problems. The latest report is actually a decent improvement on that one, going much further in recognizing some of the problems many of us have with how these issues are handled. Even the announcement about the report is better. In 2010, even though the report is officially named above, the announcement about it called it the Joint Strategic Plan to Combat Intellectual Property Theft. This year, that inflammatory and misleading language is definitely toned down.

More importantly, there are a lot of good (and somewhat unexpected) things in the report, which shows that Espinel and her office have been paying attention to the concerns many of us have raised over the years, about how the one-sided focus on "piracy" was misleading and not actually helpful. The full report is worth a read, but let's highlight a few points. The report highlights a key point that we've made over and over again, that the best way to actually deal with "piracy" is through innovation, because when innovation is allow to flourish, solutions present themselves:

With respect to the online environment, the Administration believes that when Americans and people
around the world are given real choices between legal and illegal options, the vast majority will want
to choose the legal option. Accordingly, we encourage the further development and use of legitimate
online services as an important part of an effective approach to reducing infringing activity. Today there
are a myriad of legitimate ways to obtain music, video, books, games, software, and other entertainment
and educational materials through a wide variety of business models. These include paying per use, paying
per copy, and paying a fee for access to a collection of works; allowing customers to pay what they
wish; and legitimate content that is available for free, including entertainment industry portals and artists
and authors using systems to permit free distribution of their works under conditions that they choose.

We believe that legitimate goods, including digital goods, offer clear advantages over infringing ones
regardless of price. Use of legitimate goods compensates artists, creators, and those who invest in bringing
their works to the public, and provide incentives for future creation and distribution. In addition,
legitimate goods are often of higher quality, come with express or implied warranties or guarantees
of quality, offer customer services, and do not pose the same risk of viruses or malware. They may also
include extra features not available with infringing content. And, increasingly, they may be more convenient
and easier to find.

We support and will look for additional ways to encourage and facilitate efforts that will help expand
the reach of legitimate alternatives to infringement, including through the development of copyright
registries and online databases, micro-licensing arrangements, and other market-driven mechanisms
to facilitate smooth and efficient access to content. We also encourage the work of the U.S. Copyright
Office to update and improve the copyright registration and recordation system in ways that will facilitate
licensing and encourage public-private partnerships.

To some extent, this may be overstating the playing field today with regards to where it should be, and fails to recognize the hurdles that are sometimes put up to prevent legal services from becoming truly convenient and powerful. But we have been moving in the right direction, and it's great to see the acknowledgement that innovation is the way forward, and holding back innovation with crazy licensing demands does more harm than good.

The paper also focuses heavily on increasing transparency and public outreach, which is important, since this topic has long been dominated by certain special interests:

That's good, but until the USTR actually gets on board with this (and recognizes that transparency is about sharing information to the public, not just listening to stakeholders) we still have a long way to go. The fact that the TPP (and likely TAFTA to follow it) is going to have large intellectual property sections negotiated in complete secrecy is a huge problem. If the IPEC wants to commit to true transparency, it needs to get the USTR on board. The fact that the report, elsewhere, celebrates the signing of ACTA (which was similarly negotiated with almost no transparency) as well as some very poorly designed trade agreements with Panama, Colombia and South Korea suggests that this is still a real problem, where the administration has, unfortunately, not yet changed its strategy, despite its claimed interest in transparency.

There's also a whole section on getting content creators much more familiar with fair use. Considering that fair use is often something that these kinds of documents ignore, this is really impressive.

Effective enforcement is critical to providing meaningful protection of intellectual property rights, but
enforcement approaches should not discourage authors from building appropriately upon the works of
others. We recognize the work that agencies across the U.S. Government are doing in the area of intellectual
property education, and their efforts to increase and improve this work in the digital environment.
This work includes efforts at the USPTO and the U.S. Copyright Office to help the general public better
understand the Constitutional purpose and value of intellectual property laws, and the scope of both
protections and exceptions in such laws.

The Administration believes, and the U.S. Copyright Office agrees, that authors (including visual artists,
songwriters, filmmakers, and writers) would benefit from more guidance on the fair use doctrine. Fair
use is a core principle of American copyright law. The Supreme Court has repeatedly underscored fair
use provisions in the Copyright Act as a key means of protecting free speech, and many courts across
the land have upheld the application of fair use as an affirmative defense to infringement, in a wide
variety of circumstances.

In order to make fair use more accessible to the authors of the 21st century, ease confusion about permissible
uses, and thereby encourage the production of a greater variety of creative works, the U.S. Copyright
Office, working in consultation with the Administration, will publish and maintain an index of major fair
use decisions, including a summary of the holdings and some general questions and observations that
may in turn guide those seeking to apply the decisions to their own situations.

The specifics here will matter, but the fact that they'll be pushing fair use, and not ignoring it or hiding it away, is definitely a step forward.

It's also worth noting a very different tone and choice of words in the paper than the usual biased choices. It repeatedly, correctly, refers to "infringement" rather than loaded terms like "piracy" and "theft." For most of the paper (there are a few exceptions) it focuses on the areas where real threats may exist: with counterfeit drugs (though, too often, we see that conflated with reimported legitimate drugs) and military parts. The paper really doesn't go into the usual hysterics you see from government documents about online copyright infringement, which is a welcome change.

As mentioned, there are still some issues with the plan. We already mentioned the support for ACTA, TPP and other USTR agreements that are questionable at best. It also talks up the DOJ's increasing efforts around enforcement, some of which have been quite concerning (Megaupload, anyone?) and increasing efforts for IP enforcement around the globe, which too often has meant having diplomats act as Hollywood's enforcers in other countries. The report spends a lot of time on "trade secret" enforcement, which is a big buzzword, especially with bigger companies. This is a dangerous red herring, where big companies are seeking laws and enforcement that often will be used to block disruptive innovators, but it's still better to focus on that rather than some other overhyped claims of copyright infringement.

It also highlights the Department of Commerce's absolutely awful report that counted all grocery store employees as having jobs because of "intellectual property." That report has been widely abused by maximalists to argue that we need stronger IP laws, when that's not what the report shows at all. This latest plan announces that this report will now be updated annually, and that it will "will calculate the number of jobs and the contribution to the GDP on an annual basis." I hope that they seriously improve their methodology in time for the next release.

On the whole, this report is a big step forward in both substance and tone. There are many points in there that I might quibble with, but given the kinds of documents that we're used to seeing come out of various governments when it comes to intellectual property issues, this one is quite well done. Combined with today's news about the FTC going after patent trolls, it actually seems like the administration may realize that "more, stronger intellectual property" and "greater enforcement at all costs" is not the same as effective strategies for promoting the progress of science and the useful arts.

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]]>a-step-in-the-right-directionhttps://www.techdirt.com/comment_rss.php?sid=20130620/12034123546Mon, 2 Apr 2012 07:40:24 PDTDid The White House Call For A New SOPA?Mike Masnickhttps://www.techdirt.com/articles/20120331/02201918319/did-white-house-call-new-sopa.shtml
https://www.techdirt.com/articles/20120331/02201918319/did-white-house-call-new-sopa.shtmlthe serious problems with the report. However, we did miss a little tidbit that Declan McCullagh picked up on. Hidden in the details of the report, it does suggest that we still need a "legislative solution" to offshore file sharing -- which was the point of SOPA/PIPA:

"We believe that new legislative and non-legislative tools are needed to address offshore infringement."

Now, the report also does reiterate what the White House said earlier during the SOPA/PIPA fight: that it would not support DNS blocking or other legislative efforts that harm the internet, but just saying that it supports some legislation at all seems pretty questionable. If anything, it's probably a wink and a nod towards Hollywood to try again, with something less overreaching. Of course, anything that's cooked up in the backrooms again simply isn't going to go over well, and (as I noted in my previous post on the report) it's a real shame that the White House doesn't even seem to acknowledge that the landscape and awareness on this issue has changed.

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]]>missed-that-onehttps://www.techdirt.com/comment_rss.php?sid=20120331/02201918319Fri, 30 Mar 2012 14:58:00 PDTWhite House's New Report On Intellectual Property Enforcement Should Get A Copyright As A Creative Work Of FictionMike Masnickhttps://www.techdirt.com/articles/20120330/11163118304/white-houses-new-report-intellectual-property-enforcement-should-get-copyright-as-creative-work-fiction.shtml
https://www.techdirt.com/articles/20120330/11163118304/white-houses-new-report-intellectual-property-enforcement-should-get-copyright-as-creative-work-fiction.shtmlhas been very good in trying to hear from critics of expanded copyright enforcement, the nature of the job itself leaves her little room to do too much.

However, as part of the job, she releases an "annual report" on intellectual property enforcement. Now, as you hopefully know, content published by the federal government cannot be covered by copyright and is automatically in the public domain. But, reading through the newly released annual report (pdf and embedded below), it makes me wonder if we should make an exception here, as it appears to be, in large part, a work of fiction.

There are plenty of questionable things in the report, but I'm just going to focus on a few (we'd be here all day if I dug into even more of the report, but feel free to read and guffaw along with the entire report). Once again, the report seems to assume that "greater enforcement = good thing," despite a near total lack of evidence to support that position. In part, of course, this is the nature of the job itself, so the report has to slant in that direction. But there are some whoppers in the report. Let's dig into a few:

"Improved transparency in intellectual property policy-makings and international negotiations." Wait, what?!? Yes, this is the same administration that has been the most secretive when it comes to negotiating IP laws and international agreements. SOPA came out of a secret backroom deal in which the tech industry and the public were entirely left out of the negotiations. That's why there was a public revolt over SOPA/PIPA.

And, of course, ACTA and TPP negotiations have been significantly more secretive than traditional IP international agreements as negotiation via WIPO and the WTO. In those negotiations, positions are made publicly. With ACTA and TPP the US government has driven a policy of extreme secrecy, requiring special security clearance just to see drafts, and forbidding other countries from releasing reports. With TPP, the USTR has even agreed that the various documents surrounding the negotiations should be kept secret until four years after the agreement is completed and ratified. This is not transparency at all. It's the opposite of transparency. Saying you're transparent and actually being transparent are two different things.

This is a point where the White House and IPEC in particular could be a lot more effective. It could revamp the entire Special 301 process to make that more transparent and less of a black box where the USTR basically "remixes" the complaints of Hollywood into a report shaming other countries. It could tell the USTR to release its positions and drafts for things like ACTA and TPP publicly so that the public (you know, the real stakeholders) can comment. It could call out the USTR for doing things like participating in an industry-sponsored dinner for negotiators, and partying in Hollywood with MPAA studio heads while kicking civil service organizations out of the hotel where they were meeting. But, instead, it pretends that there's more transparency? That's simply fictional.

Patting itself on the back for including transparency when it's actually one of the most opaque administrations on such issues is simply ridiculous.

What's not in the report. It's really quite stunning what's completely missing from the report. The omissions are quite telling, however. The report appears to completely skip over what happened with SOPA/PIPA. I mean, it's as if the widespread public backlash and outrage didn't happen at all. SOPA and PIPA are barely mentioned at all, and when they are, it's only to mention briefly how random parts of those bills (not the main parts) included little bits and pieces of the White House's legislative agenda on IP around "greater information sharing." How can a report on the state of IP enforcement completely leave out the biggest thing that's happened in IP enforcement in decades? The fact that the public has stood up and said enough is enough on greater expansion of making the government Hollywood's private business model protection service. That's a huge event and to completely ignore it is quite telling.

Similarly, the report completely ignores last year's realization of the serious problems with Homeland Security's ICE's Operation in Our Sites, the program to seize and censor websites based on mere shreds of evidence. While the report does mention Operation In Our Sites multiple times, it's only to self-congratulate itself for such censorship. What it does not mention is that the program resulted in the wrongful seizure and censorship of sites based on faulty evidence, or the fact that it is stillillegallycensoring a few websites, despite not having filed for forfeiture, as required by the law.

In fact, the report seems so ashamed of the November 2010 seizures -- which resulted in all three of the domains in question being seized -- is completely skipped over in the discussion. They discuss the seizures before that one (in the summer of 2010) as well as the operations in 2011 -- but the infamous November 2010 seizure round is simply being written out of history.

I'd have a lot more respect for Espinel and IPEC if it would actually admit that they fucked up royally with some of these seizures, and then was willing to publicly explain what went wrong, why it went wrong and what the White House is doing to prevent such bogus seizures and censorship from ever occurring again. Instead? It just pretends it never happened at all. That's shameful behavior.

"Voluntary best practices." The report talks up how there have been a variety of private sector "voluntary best practices" that were "facilitated by the IPEC." This includes things like the infamous "six strikes" plan that the ISPs have agreed to. While "private sector" solutions are good, what this leaves out is that the "facilitated by the IPEC" part was more about effectively threatening the ISPs that if they didn't come up with a plan, that it might show up in a law instead. Separately, the problem with "voluntary best practices" like this are that they really do seem to border on government-sponsored collusion. Getting all of the industry's largest players in a room to make agreements on who to do business with, who to censor and why... and without having it go through government review to avoid abuse? That's generally something the government used to be against. Why is it for collusion in these cases?

"A data driven government." The report tries to suggest that the government is being more data driven, and less faith-based in its efforts, but that's belied by the fact that nowhere is any effort being made to empirically look at the effectiveness of this enforcement on "promoting the progress." Instead, the "data" the report talks about is the data on how they've taken the same budget and "turned it into a more than 33 percent increase in seizures, arrests, and investigations of counterfeit and pirated merchandise in FY 2010." But if those seizures, arrests and investigations are doing more harm than good, or are leading to false accusations, censorship and bogus (taxpayer-expensed) lawsuits, isn't that a problem? Shouldn't IPEC be exploring that?

Separately, it notes that the federal government is conducting an "economic analysis." That's good, right? But it's not conducting an economic analysis on the effectiveness of this enforcement. Instead, it's conducting an economic study that, by the very setup of the study, is completely missing the point. It's actually designed to miss the point by starting with the assumption that greater IP is a good thing:

At the request of the IPEC, the U S Government is for the first time conducting an economic analysis, led by DOC, the Economic and Statistics Administration (“ESA”), and the USPTO, working with chief economists across the Federal government, to identify the industries that most intensively produce intellectual property and to measure the importance of those industries to the U S economy This broad study will examine all sectors of our economy We believe that improved measurement of intellectual property linked to measurements of economic performance will help the U S Government understand the role and breadth of intellectual property in the American economy and will inform policy and resource decisions related to intellectual property enforcement

And, no, I don't know why the report seems to do away with the grammatical icon known as "the period" at the end of sentences. Perhaps it was too expensive to license. Either way, notice that this study seems to assume, without evidence, that industries that "produce" intellectual property automatically require intellectual property laws and protectionism. Figuring out which industries produce a lot of intellectual property says nothing about whether or not those industries actually need intellectual property laws, or if those laws are helpful or harmful. When you set up to study something based on faulty assumptions, the end results will not be helpful.

All in all the report clearly tries to paint a rosy picture, but in leaving out the failures and being quite misleading in other parts, this really is a work of fiction, not reality.

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]]>maybe-hollywood-can-make-the-moviehttps://www.techdirt.com/comment_rss.php?sid=20120330/11163118304Mon, 6 Dec 2010 14:17:00 PSTUS Copyright Czar: Expect More Domain CensorshipMike Masnickhttps://www.techdirt.com/articles/20101206/11325112148/us-copyright-czar-expect-more-domain-censorship.shtml
https://www.techdirt.com/articles/20101206/11325112148/us-copyright-czar-expect-more-domain-censorship.shtmlseizure of a bunch of domain names was apparently just the beginning of a larger plan to go after such folks. Espinel has been making the rounds over the past few months, working to get various companies to voluntarily start censoring websites in this manner, even without the COICA bill being in place. This isn't really a surprise. Espinel has stated in the past that her job is to focus on the enforcement side of copyright law, so it's no surprise she's supportive of such seizures.

What's scary, though, is the fact that she doesn't seem willing to recognize how these seizures appear to go way past "enforcing" copyright law, and move into blatant censorship. In her comments, she noted that "We are going after the piraters and counterfeiters," but she seems to ignore that caught in that net are perfectly legitimate search engines and (more seriously) blogs with plenty of non-infringing content. If that's not the definition of prior restraint and blatant government censorship, I don't know what is.

What's sad is that Espinel has appeared in the past as someone who actually recognized these issues -- and while she's under a lot of pressure from the entertainment industry lobbyists who apparently get to write her performance reports -- if these sorts of activities keep up, she's going to go down as the US's chief censor. What a shame.

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]]>free-speech-ain't-freehttps://www.techdirt.com/comment_rss.php?sid=20101206/11325112148Fri, 18 Jun 2010 10:32:52 PDTSenate Oversight Of IP Czar... Only Involves Entertainment Industry ExecsMike Masnickhttps://www.techdirt.com/articles/20100617/1614489871.shtml
https://www.techdirt.com/articles/20100617/1614489871.shtmlfilled by Victoria Espinel. We have been quite concerned that Espinel has viewed her role as protecting jobs in one particular industry (often at the expense of jobs and progress elsewhere) -- a concern that was not alleviated by Espinel's request for input on what she should focus on. That request made all sorts of assumptions about the impact of intellectual property infringement that were not actually supported by fact. Mike Arrington also reported recently on a meeting with Espinel where she made it clear that her role was to help the entertainment industry.

So, it's unfortunate, but hardly a surprise that the Senate's hearing on "oversight" of Espinel's work involves only people on the entertainment industry's side. The panel who will discuss Espinel's performance includes the CEO of Warner Bros., the CEO of the "Global IP Center" of the Chamber of Commerce (whose views on IP are positively neanderthal, complete with some of the most ridiculous studies), the CEO of Carlin America (a music publisher) and the president of the AFL-CIO, who has already done some horse trading to be an official representative of the RIAA's position.

Talk about regulatory capture. It's as if the Senate is admitting that the role of the IP Enforcement Coordinator is to be the entertainment industry's top cop, and her performance will be reviewed by the industry itself. The Constitution says that copyright and patents are for the purpose of "promoting the progress of science and the useful arts." But that's not what Espinel is doing. She's protecting a particular industry, often at the expense of progress. To then have her review be done by such a one-sided panel of folks -- folks who are receiving extreme benefits from her role -- is just ridiculous.

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]]>that's-oversight?https://www.techdirt.com/comment_rss.php?sid=20100617/1614489871Tue, 4 May 2010 08:00:39 PDTSongwriters Guild Claims The Internet Makes It Impossible To Create ContentMike Masnickhttps://www.techdirt.com/articles/20100503/1253019287.shtml
https://www.techdirt.com/articles/20100503/1253019287.shtmlposted the public comments on the IP enforcement plan, and pointed out a few of them. We had avoided the ones from most of the well-known lobbying groups because they tread on ground that had already been trampled to death, but a bunch of you have been submitting the filing from the Songwriters Guild of America, which takes ridiculous arguments to entirely new levels. Phillip pointed us to Ars Technica's take on the comment, highlighting the utterly ridiculous claim that bank robbery is less of an issue than copyright infringement, but the rest of the filing also raises some bizarre arguments as well.

Of course, the SGA, and its boss, Rick Carnes, are sort of famous for their over-the-top ridiculous claims that were debunked ages ago, but Carnes never seems to let up. In Carnes' world, the gov't owes songwriters a living, and the fact that the market has changed is of no concern to him, because he doesn't want to change, and the government should do everything possible to stop such market changes. Carnes/SGA also have also said that "network neutrality" means more piracy, that songwriters cannot write without copyright and, my favorite, that no technological change should ever be allowed to decrease royalties for songwriters.

So what's in this filing? Let's start at the beginning:

The current Internet delivery system is not tenable for creators and copyright owners.

Yes, you read that right. The current internet -- perhaps the greatest tool for content creation ever is not a tenable delivery system for content creators. Of course, that's easily debunked, because more content is being created today thanks to the internet and the fact that it's a very efficient delivery system. The fact that thousands upon thousands of content creators have embraced the internet, used it to help create, promote, distribute and share their music -- and as a way to build better, more efficient business models? According to Carnes and the SGA, that's "not tenable." Weird. Someone alert everyone else on the internet.

Digital piracy has almost completely destroyed the profession of songwriting, and is slowly destroying the music industry.

And yet, more songs are being produced and released every year than ever before and more money is being put into the music industry than ever before. That's a funny definition of "destroyed" and "destroying."

Of course, the crux of the Guild's argument is basically that music publishers no longer employ songwriters. Yes, and phone companies don't employ as many operators as they used to. Times change. Technology changes. Get used to it. Copyright law is not a law to require that there be a specific profession for songwriters. Copyright law is designed to promote the progress of science and the useful arts -- and if more music is being created than ever before, it appears that progress is being promoted, even if the profession of songwriting changes. But, why let facts get in the way of the claim that unauthorized file sharing will destroy the US economy:

Such piracy has deeply and materially harmed the songwriter community, but it also threatens the overall U.S. economy; the economic fate of U.S. copyright industries is critical to
U.S. economic success, both domestically and in the global marketplace

Of course, he cites the already debunked claims about how much the "copyright industries" contribute to the US economy, totally ignoring the counter study that shows that exceptions to copyright law contribute much more to the economy, by using the very same methodology as the study the SGA cites. The SGA assumes, totally incorrectly, that the amount the so-called "copyright industries" contribute to society is entirely because of copyright law. And that's bunk. Most of it has nothing whatsoever to do with copyright. That the SGA has become so reliant on the crutch of copyright law and are unable to adapt is not the US gov't's problem.

The SGA then goes on to make the absolutely incredible suggestion that the FBI should be in charge of enforcing civil copyright infringement claims:

The FBI, or similar law enforcement agency, should be given the authority to investigate copyright infringement cases and pursue civil fines and penalties.

This is unprecedented. The FBI and the US gov't should not be involved in civil matters (matters between two private parties), but only criminal ones. This, by the way, is where the SGA makes the bizarre claim about bank robbers being less of an issue:

There are numerous economic crimes of much lesser magnitude (such as bank robbery) that are routinely and fully investigated, for which law enforcement agencies such as the FBI have significant resources. By contrast, online copyright piracy dwarfs bank robbery in causing economic losses, yet the FBI has limited criminal investigative interest and no civil mandate whatsoever to pursue this devastating economic harm. This inequity must change.

Except bank robbery is a crime. File sharing is not. It's a civil issue and a business model issue. And the arguments that the "losses" from file sharing are greater than actual robbery is simply not supported by the facts. As we noted, the recent GAO report should have put an end to those claims, but the SGA conveniently will ignore such things.

From there, the SGA goes on the attack against net neutrality again, insisting that net neutrality and unauthorized file sharing are linked hand-in-hand:

The Internet as currently constructed has facilitated digital copyright piracy that has led to the ruination of the music industry.

Other than the fact that the music industry is larger than ever before, it's difficult to see what point he's making.

There are ridiculous arguments and there are ridiculous arguments. Rick Carnes' filing with the IPEC goes beyond pretty much anything else out there to the level of being flat out incredible. It's incredibly backwards looking, wrong, and downright misleading.